The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Friday, October 07, 2005

Is Miers one in a million? A reply to Charles Krauthammer

WaPo columnist Charles Krauthammer, normally remarkably thoughtful and open-minded but always eloquent, disappoints me in his column today on the Miers nomination by asking this very good question without bothering to pause to consider its answer:

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president?

Well, sir, I have your answer right here, 'cause not a single other one of those 1,084,504 lawyers can say they've been —

counsel to the President and to the governor of one of the most populous states, along with having competently executed several other high-level White House staff positions;

president of both the state bar association in the Nation's second largest state and of one of its most respected and active local bar associations, as well as having led valiant efforts to return a dysfunctional American Bar Association back to its roots of apolitical service to the profession and public;

long-time managing partner of an extremely well regarded large Dallas-based law firm, which then became a successful 400+ lawyer statewide powerhouse after she oversaw a successful cross-state merger with a Houston-based firm of comparable size and reputation;

an accomplished courtroom lawyer, praised with words like "very good, cool, deliberate, poised, effective" by the judges before whom she's appeared, with experience at both the trial and appellate level in both state and federal courts, capable of personally attracting repeat engagements from sophisticated clients like Microsoft and Disney, and regularly listed among the top 50 or 100 American lawyers in listings complied by national legal periodicals;

a law clerk for two years for a respected federal district judge, providing further insights into federal trial practice of a sort that no current member of the Court can claim;

a published member of, and then an articles editor for, the top law journal at her law school, noted for its comprehensive coverage of Texas law; and

a "very thoughtful, very good student" who made "top marks" and could be counted on to give "solid, intelligent answer[s]" to "critical question[s]," according to a professor of hers, nationally recognized as an expert in business law, who 35 years after teaching her pronounced himself filled with "great satisfaction" to see her nominated to the Court.

Dr. Krauthammer's question also seems to assume that "her connection with the president" is a negative factor. Instead, it reflects the fact that based on years of close dealings with her, the President says he's more sure, based on personal knowledge of her, that she won't turn into "another Souter" than he could be with respect to anyone else he might have nominated — thus allowing him to keep his campaign promises about judicial nominees. He made those as his personal promises to the voters; why, now, is he being faulted and accused of "cronyism" for trying to fulfill those promises on the basis of his personal knowledge of and confidence in this nominee?

Dr. Krauthammer's column engages in the revised version of the "we're not being elitist, but ..." argument that has begun circulating lately. And to be clear, I'm not suggesting that he ever sniffed at Ms. Miers' SMU law degree or Texas legal practice; but others certainly have, and many false impressions still linger. Nevertheless, the revised version of that argument, if not as obviously elitist, still shows either (a) a lack of imagination or (b) a lack of appreciation of what judges and lawyers actually do, or (c) both.

Dr. Krauthammer insists, for example, that "constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship." And then he simply presumes — conclusively and irrebutably, it would seem — that Ms. Miers has no more capacity for "intellect steeped in scholarship" than any of the other 1,084,503 lawyers in the United States.

That's rather at odds with her actual record, which reflects considerable intellectual tools. But it's also far too narrow a focus, in several respects. In the first place, only a portion of the Court's work is, strictly speaking, "constitutional jurisprudence." The Court also deals with many other types of issues — indeed, a whole panoply of issues as diverse as, well, the kinds of cases that a top-flight courtroom lawyer at a first-class law firm has dealt with. There's a reason, Dr. Krauthammer, that most lawyers only take one, or at most two or three, courses in constitutional law: there's a lot more law out there, and it's important to the Nation too.

Dr. Krauthammer and similar critics of the Miers nomination also seem to believe — I can't imagine why, because it's counter-factual and counter-intuitive —
that you have to keep writing law review articles month after month and
year after year in order to have a powerful intellect. They seem to think that unless you do that, or you have the very, very rare sort of private practice that John Roberts had, doing nothing but appellate litigation in what's functionally indistinguishable from a never-ending law school moot court, you're simply incapable of grasping constitutional law as well as, umm, Charles Krauthammer can, I guess, as a physician-turned-pundit. Dr. K, it's unlike you to
impute a negative stereotype to such a huge class of people: being a
practicing lawyer doesn't mean one's retarded, and in fact there's a positive correlation between intellect and success as a
practicing lawyer.

Moreover, while constitutional law is certainly important and raw intellectual ability is important as well, there has been no shortage of very smart constitutional scholars on the Court. Indeed, that's exactly how — and why — nine of them have been able to produce ten different opinions on a single day to try to explain why displaying the Ten Commandments is constitutional in Texas but unconstitutional in Kentucky.

A reasonable observer — a reasonable President, and reasonable senators — might conclude that some important sorts of diversity other than race, sex, and religion might be missing from the Court. Someone who hasn't clerked on the Supreme Court, but instead down in the trenches in a federal district court, and then practiced law there for many more years, might be useful among the Justices. Someone like that might have figured out and persuaded her colleagues on the Court, for instance, that it was a poor idea to turn state and federal sentencing procedures entirely topsy-turvy all at once and without warning, and then to shrug and say, "Oh well, we'll see about cleaning up our mess next Term."

Yes, I am hesitant to repeat an argument that Harry Reid has made publicly. But even a stopped clock is right twice a day, and Sen. Reid is correct in observing that the Court badly needs someone with the perspective of a practicing lawyer with trial-court experience.

This is not an argument in favor of mediocrity. This is an argument in favor of adding some different kinds of smarts to the Court. Until fairly recently, it was the rule rather than the exception to draw some new Justices from the ranks of practicing lawyers who've been successful and who've demonstrated character, devotion to profession and community, and sound judgment as measured in a wide variety of contexts. I respectfully submit that if you think your menu has only three choices — circuit judges in column A, law professors in column B, and law professors turned circuit judges in column C — then you are indeed being either elitist, unimaginative, or both.

In Dr. Krauthammer's case, I'm relatively sure the problem is simply a failure of imagination. And I'm hoping that he and quite a few others who are prejudging Harriet Miers' nomination will try to open their minds to the benefits that Dubya already perceives from it. In fact, there are quite a few more than "one in a million lawyers" who would constitute wise choices to fill Justice O'Connor's slot on the Court. But blinding oneself to this one in a million's particular set of credentials, or arbitrarily excluding her from consideration because she's neither a circuit judge nor a law professor, is both unwise and unfair.

Comments

It's of course true that Miers is the only attorney in America who can meet the criteria you've laid out, at least in toto. (There are, of course, hundreds of other lawyers who have done one or more of the things on the list, too.) But someone has yet to explain why it is that this particular combination of factors is the best against which to measure Supreme Court justices.

Of course that argument smacks of post hoc justifications. Do you think that these criteria were the ones used when the president was screening a nominee? (Maybe, but there's at least one important one overlooked: her close friendship with the president.) Or is it more of a matter of highlighting her accomplishments and skills (clearly considerable) after the nomination was already decided?

Maybe, but there's at least one important one overlooked: her close friendship with the president.

OK, but does that HAVE to be a negative? Isn't it a good thing that she is someone he does know and trust, since he is the one who does the choosing?
Obviously, it isn't the only reason she was picked (I don't think anyone's suggesting that anyway), but it added strength to the package, because of that level of trust. Furthermore, it isn't like he's picking a big-spending political contributor (or, to be fair, the niece of a friend); there's a significant difference in those kinds of alliances.

It is a continuing revelation to see the number of apparently bright people (like Krauthammer) make incredibly ignorant arguments when it comes to Harriet Miers. I mean, most of these arguments seems easily reducible to the "absurd on its face" category. Yet they go forward, resolute in their brilliance.

I predict this is going to make an interesting case study one day.

At this point, it's seems undeniable to me that there's some very real bias going on here and most of these contrarians are hiding behind all kinds of "yeah, but" defenses to explain their irrational attack on an accomplished lawyer.

Well said, Beldar.
This is the kind of diversity that can bring truly new thinking and more importantly, results, to the Court. Non-institutional, non-academic, pro-working people (in the real sense of hte term). Her math background means she will be more empirical and less dogmatic in her analysis. Her dealings with working govts. at many levels is unizue in the court as well.
The more I know her, the more I known that W's critics, as usual, have misunderestimated him.

Krauthammer until recently was one to be counted on to bring common sense analysis to many issues, however note how at least for the the first week of KATRINA he also was one of the ones via Brit Hume's show on Fox very unfairly (as the evidence now increasingly shows) that piled on Bush and FEMA - basically joining in the massive hysteria of the major media

He pretty much seemed to buy off on Geraldo and Shephard Smith on camera live-shot meltdowns which totally exaggerated reports from the Convention Ctr and the I-10 overpass, where these commmentators all but accused the Bush admin of intentionally starving people or letting them dehyrdrate to death and leaving them to be raped and plundered nightly. Of course it turned out the Guard was in fact minimally provisioning nearly all parties as best as possible, and these unfortunates awaiting evacacuation though unconfortable were in fact put 2nd to people for good reason left stranded on rooftops and an in attics who were in fact at high risk of dying - the context the media just seem to conveniently ignore

CHARLES DID THIS WITH ALMOST NO FACTS ON THE TABLE, other than the massive distortions being reported for the first 5 days of the crisis

Now to his credit, he revised his comments starting into the 2nd week, putting a biT more perspective into his comments, and to a large extent backed out of his earlier comments

He may end up doing the same thing here at some point

Of course being a major mentor for Rich Lowry has not exactly helped him, given Rich Lowry's disgraceful performance on this issue

Have the anti-Miers zealots considered the (Amish style) shunning option whereby once the confirmation hearing starts, they simply turn their chairs backwards to express their dispproval for such a person of such inferior intellect?

Ann Coulter I am sure would consider this should she be granted an in-person sit down with Ms Miers

The attacks on Miers may not be totally rational, but neither are they meritless. I am seeing a surprising amount of emotionalism from pundits whom I had previously thought to represent careful reasoning rather than acting as poster children for logical fallacies. But critics are right that the left will have several arguments that, although not necessarily disqualifying, are going to be tough to fight

It seems to me that what really rankles, despite the arguments being actually offered, is that the President chose not to confront the liberals. Very many conservatives, especially bloggers and blog readers, desperately wanted a showdown over a known conservative jurist with impeccable credentials. With Miers, the terms of the debate have altered and a showdown over ideology probably averted.

Also, many conservatives feel like Miers resume doesn't permit them to make an affirmative defense of her nomination in the face of "not the best person for the job" and "crony" arguments. In other words, they find themselves in a vulnerable position rather than a position of strength, and they wonder why the President would put them there.

Apparently, the stress has been too much for Will, Barnett and Krauthammer. They have been provoked into naked disdain for reason in favor of sophistry, with embarassing results. Beldar has demonstrated just how devastating a trial lawyer intellect can be in his eviceration of the arguments of Krauthammer and Barnett.

This is actually a debate that is well worth having. Sooner or later, conservatives are going to have to face the fact that we are as sycophantic towards elitism as the most blue-blood Democrat. If nothing else, we will learn that sometimes the road less traveled gets one to the same destination as the one conventional wisdom suggests.

Will someone please remind the hand-wringers that we've already had the Great Big Showdown they crave, back in May? I'd have thought it would take them a bit longer than this to forget how that turned out.

The right of center folks need to view the larger political landscape picture. The President does not have the votes in the Senate to push through a conservative of their liking. If he had the votes then John Bolton would have been confirmed. The RHINOS will not be defeated in their states for sinking a conservative candidate to the SC. The President knows what he is doing while others would like to think they do.

Given the track record of previous justices (their performance once they've joined the Court), I suspect that your claim that "hundreds" or "thousands" could do the job "quite capably" is quite mistaken, unless by you and I have radically different notions of what it means to be "capable" in one's job.

Even though we can't rank order potential nominees by their comparable worth, I do think it is possible (with some shading at the edges) to group such people into tiers. And no one, I think, outside of G.W. Bush himself, considered Miers a "top tier" candidate prior to Monday. Frankly, I'm not even sure if we took the rather idiosyncratic list of virtues propounded by Miers's supporters (and discarded the geographic qualifiers) that she would be in the top 10 of practicing lawyers who were potential nominees.

And Beth, I would argue that a close friendship to a president is, if not a disqualifier for a Supreme Court justice, at least not a positive. Justice Miers, assuming she is confirmed, will almost instantly be called on to judge the constitutionality of the President's actions. Do I want someone who is a close friend to the president judging? No, not really. That's the sort of situation where district court judges recuse themselves all the time, rightfully so, I think.

It's true that other justices have been close friends with Presidents. (Sometimes too close, see Abe Fortas.) But I think by and large those "good" justices who were close to presidents still had some independent base of support or accomplishment. Miers's accomplishments -- at least as they relate to her qualifications for the Court --- are wholly dependent on the same person who appointed her and whose arguments she will be soon evaluating. This strikes me as problematic. (As does her comment, reported by David Frum, that the president was "the most brilliant man" she had ever met. One wonders if she gets out much.)

You're damn right I'm being elitist. I have yet to hear anyone argue forcefully why elitism is bad or wrong. Is it simply some lasting egalitarian public morality in America, where no one should claim to be better than someone else?

Preferring an elite law pedigree is not wrong. Suggesting only elite law resume are suitable for the Supreme Court is demonstrably fallacious given the success of others who have served ably but have not had an elite law pedigree.

Therefore, it could be (and has been, by the host himself) argued that by confining the universe of acceptable choices to only those with an elite law resume is to ignore qualifications that are not available to those with such resumes. It is to pass judgment that only those certain life experiences within the realm of law need ever consider elevation to a branch of government that was considered by many if not all the Founders to be the least important branch (its elevation to godhead in modern times notwithstanding).

Finally, an elite resume and accomplishments within the legal upper crust is not a reliable measurment of intellectual acuity. It does have the virtue of leaving a paper trail by which one can get some idea of how they will interpret the constitution, but it is not the be-all and end-all of legal development its defenders seem to claim.

Do I want someone who is a close friend to the president judging? No, not really. That's the sort of situation where district court judges recuse themselves all the time, rightfully so, I think.

This is wrong. Friendship isn't a legal basis for mandatory recusal. Justice Scalia wrote about this at length in his opinion explaining his refusal to recuse himself from the Cheney energy task force case despite having gone duck hunting with Cheney, and it was a masterful opinion, both in logic and in presentation of the relevant caselaw. (The issue pretty much sank beneath the waves at that point, correctly.)

Related to that: another problem with Krauthammer's column that I didn't mention in my original post is his false assumption that Ms. Miers would have to be recusing herself "for years" on cases involving the administration. There have been many Attorneys General who've become Supreme Court Justices after longer executive branch service. Her comparatively short service is going to minimize the number of cases that recusal will even need to be considered.

As Justice Scalia's above-referenced opinion also points out, Supreme Court Justices, because they're not fungible or replaceable, have a special obligation not to self-recuse casually or willy-nilly. That counsels against, for example, recusal based on "imputed knowledge or involvement" by others down or parallel to her in the chains of authority.

If the Court hears a case in which the Administration is defending a specific policy that she helped create, the issue will come up; but that's going to happen less often with someone coming from the Counsel to the POTUS office than it would for someone coming directly from traditional DoJ channels.

Finally, in the context of a lifetime appointment, it's a trivial concern -- involving only a small percentage of cases at most, in a small percentage of a Justice's overall service.

Mr. Clam, if you're using "elitism" to mean "appreciative of superb qualities," then it's a good thing.

The more common connotation, and the meaning I've intended in using it, refers to an irrational prejudice that causes one to use the wrong criteria to prejudge individuals other than on their actual merits. If you say, for example, that only Ivy Leaguers ought to be considered for Supreme Court seats, then you're unfairly excluding a great many well-qualified candidates who weren't Ivy Leaguers. Moreover, you're not only missing out on good candidates, you may be including some, based on your stereotype, who actually aren't. I've known Ivy League lawyers who, while brilliant, lacked the common sense to come in out of the rain.

Elitism is hardly wrong, except where its used to cut short the debate on the merits, and when the issue of membership or nonmembership in the designated class itself becomes the essence of the controversy.

I could assert for example that obvious Harvard Law rejects shouldn't be posing as Constitutional Law scholar/media pundits on Time Magazine covers, as its common knowledge to all that only such brilliance can flow from the banks of the Charles River

Being woefully ignorant about the legal sphere and those who reside therein, I nonetheless have one question that might be worth considering. I've read that there are 2-3 more Justices who are ill/elderly enough that they could conceivably be replaced by GWB. How might Mier's nomination impact the decisions of those other Justices? Assuming it would have been possible to successfully appoint a strongly conservative Justice, would that make it more or less likely for additional Justices to step down and allow GWB to choose their successor?

Re-reading my original post, I realized that I was more blunt than Dubya has been, from whose lips you'll never actually hear the phrase "no more Souters."

Instead of "she won't turn into 'another Souter,'" I ought to have written, "she will be in the mold of Justice Scalia and Justice Thomas," which is not exactly the same thing, but not far off and less insulting to a sitting member of the Court.

I think the Cheney-Scalia situation is somewhat inapposite. The conduct complained of there -- the hunting trip -- was a one-off occasion explained by Cheney and Scalia's previous relationship (dating to the Ford Administration). Cheney played no role in appointing Justice Scalia to either the DC Circuit or the Supreme Court.

(As Scalia's opinion acknowledges, I also think that the answer might very well be different for lower court judges, either circuit or district, when faced with a similar set of facts. Most judges I have known or known of have no problem sitting in a case where the lawyers involved are good friends; however, when the friendship is with the party and not the lawyer, and is sufficiently close, most get out. "Appearances of impropriety," &tc.)

Scalia's opinion does give a thorough listing of justices who, once they were on the Court, retained close friendships with incumbent elected officials. Fine. (I might prefer it otherwise but social realities are what they are. And note that in my response to Beth I did not say that Miers would be required to recuse, only that close friendship was surely not a positive thing, and maybe something that we should in fact try to avoid when possible.)

Among those justices who 1) maintained such friendships and 2) are considered by history to be "good" justices, I think that every one had a demonstrably greater degree of independence from his "friend" than Miers does from the president. (My complaint is of course speculative: it could be that once on the bench, Justice Miers will demonstrate early and often that her friendship with the President plays no role in her judgments; I hope that she has the chance, and does so. But I think these questions are perfectly legitimate to ask.)

To hearken back to an earlier point: if there are in fact tens or hundreds of qualified potential nominees, why choose one that raises these issues at all?

So many people conflate their own opinions with personal knowledge available to GWB and then act outraged that GWB acts on his personal knowledge rather than their opinions.

Good grief.

If I were president (exceedingly unlikely!) and I wanted to GUARANTEE that I did not inflict another Souter on my constituents, I would do exactly what Bush has done. I can think of no better knowledge to have than first-hand knowledge.

***
What I see is a large number of conservatives whining that they are not privy to and influencing the president's Constitutional right. Why? they keep asking. Well, if YOU want to put people on the SCOTUS, win the presidency first.

Not enough of a showdown for most, unfortunately. They want to force the "nuclear option," which seems exceptionally short-sighted to me. Poking the left in the eye is fun, but it's idiotic to shoot yourself in the foot in the process.

As far as Miers' friendship with the President goes, when Gonzales' name was floated, there were objections from all sides, but I don't remember his friendship being an argument against it. Maybe because there were more important issues to raise? Maybe this isn't a terribly important reason to oppose?

[Ugh. That didn't post right!]
David W. raises a question I've thought about as well. Stephen Bainbridge said in July that Justice Stevens might possibly retire soon, then saying "if, but only if, CJ Rehnquist steps down."
A lot has changed since then, of course, but he also said, "The theory is that Stevens will be willing to let Bush fill his slot only if there are so many spots available that Bush will feel free and/or pressure to nominate at least one moderate."
Bainbridge thought it would be Gonzales, but it seems that Miers could be LOOKED AT as that "moderate."

Seems to me (borrowing a military metaphor) that the various elitist pundits are arguing that only "generals" can be appointed to the supreme court. That is, only generals have the intellectual capability and experience to draw up plans, not some mere staff sgt with 35 years of battlefield experience. Of course, the parallel isn't exact here, and I'm not saying that Miers is unqualified, but it does seem that the detractors are insisting that only the equivalent of West Point grads should be considered.

Considering personal dynamics, having 9 'general' types on the court doesn't seem to be a way to reach any type of majority consensus - and dissenting opinions, no matter how well written, are still on the losing side.

Seems to me (borrowing a military metaphor) that the various elitist pundits are arguing that only "generals" can be appointed to the supreme court. That is, only generals have the intellectual capability and experience to draw up plans, not some mere staff sgt with 35 years of battlefield experience. Of course, the parallel isn't exact here, and I'm not saying that Miers is unqualified, but it does seem that the detractors are insisting that only the equivalent of West Point grads should be considered.

Considering personal dynamics, having 9 'general' types on the court doesn't seem to be a way to reach any type of majority consensus - and dissenting opinions, no matter how well written, are still on the losing side.

I'm shocked that a lawyer in Texas who claims to be conservative would have anything good to say about the State Bar. It is resolutely anti-prosecution and anti-law enforcement, and seems to exist only to be a plaything for senior partners at civil law firms. I have no respect for bar-toadies and the giant circle jerk they involve themselves in. And I have to hear about it because I pay over $200 a year for that stupid magazine.

I am VERY sympathetic to Beldar's argument in favor of "adding some different kinds of smarts to the Court." I would LOVE to see a practicing attorney, with no prior judicial experience, added to the court.

But here's my question: other than her relationship with Bush, what distinguishes her from thousands of other partners at large law firms?

I don't give much weight to the points in her favor that she was managing partner - at least in my experience wirking at several large firms in NYC, managing partners aren't typically the best lawyers in the firm, but rather those who can attract the political support among factions of partners and who have the time and ability to handle administrative tasks. These things are not too relevant to qualification for the Supreme Court.

I also don't give much weight to the Bar Association leadership role.

So, then, what is left to distinguish Miers from the 200 partners in my current firm, or the thousands of partners at other large law firms? Other than her relationship with Bush?

Frankly, if we wanted a cypher of a practicing lawyer, just pick a random firm in the AmLaw 200, and then pick a random partner (or even pick the managing partner). Seems to me to be just as qualified as Miers.

I've got to say that these comments talking down the difficulty of arguing or deciding Supreme Court cases are just nonsensical. Or, more bluntly, moronic.

There aren't many 9-0 cases not because the justices are stupid or venal (the gall it takes to assume persons of such achievement are either simply because they disagree with you is staggering) or the cases easy, but because the justices and advocates (and clerks) are all by-and-large quite smart and the issues they confront are quite hard.

Someone may look at a given decision and say "well, that seems obvious," but when you must consider not only whether it agrees with your intuition but also: 1)how it comports with text, 2)precedent, and 3) the potential effects of announcing or endorsing a particular legal rule, then most things that seem obvious are really not so. Even cases that end up 9-0 may do so not because the issue is easy but because each justice was 51% persuaded that the winning side had the better of the argument.

District judges have easy cases because they see everything that comes in the door and one of their primary functions is to screen out meritless cases. Circuit courts have easy cases because everyone has an appeal of right. The Supreme Court sees easy cases only when the inferior courts manifestly failed in their jobs, which isn't all that often.

So, for the sake of my blood pressure, will people please stop assuming that the Court is populated by well-trained monkeys who are easily replaced?

Simon, and others: Assume for a moment that I am President, and I am set on nominating a practicing trial attorney to the Supreme Court. You are my advisor. What criteria would you use to narrow down the options? How would you determine the top 10, or top 100 trial attorneys?

Simon, and others: Assume for a moment that I am President, and I am set on nominating a practicing trial attorney to the Supreme Court. You are my advisor. What criteria would you use to narrow down the options? How would you determine the top 10, or top 100 trial attorneys?

Simon, and others: Assume for a moment that I am President, and I am set on nominating a practicing trial attorney to the Supreme Court. You are my advisor. What criteria would you use to narrow down the options? How would you determine the top 10, or top 100 trial attorneys?

Beldar, I'm sorry, I've read your take, but I'm forced to conclude the Bushies are simply incompetent. They mean well, but they don't have any ideas how to break the Senate log jam, so they jumped at this trick of nominating a person acceptable to Harry Reid. Too clever by half. The only term I can use to describe this -- an inability to get your picks confirmed over the objection of kooks like Schumer when there are 55 GOP seats and a majority of the people are with you -- is incompetence. For 5 years, the DEMs have been tying Bush up when they have no hand to play. The Bushies just don't know how to match means to ends, either in the Senate or the GWOT.

Beldar, I'm sorry, I've read your take, but I'm forced to conclude the Bushies are simply incompetent. They mean well, but they don't have any ideas how to break the Senate log jam, so they jumped at this trick of nominating a person acceptable to Harry Reid. Too clever by half. The only term I can use to describe this -- an inability to get your picks confirmed over the objection of kooks like Schumer when there are 55 GOP seats and a majority of the people are with you -- is incompetence. For 5 years, the DEMs have been tying Bush up when they have no hand to play. The Bushies just don't know how to match means to ends, either in the Senate or the GWOT.

As a non-lawyer I love to hear lawyers argue and try to make their case. The comments here live up to my expectations with many exposing their wish to be the smartest person in the room with calls for only the brightest... and of course those only with an elite school education... need apply for a supreme court job.

As one who was educated at a small, liberal arts oriented, midwestern college and grew up in a small town in Southern Ohio where only about 25% of us went to college, I early on learned to appreciate the untainted intellect and street smarts of the formally uneducated mind. I majored in Psychology as an undergraduate and later went back for an MFA in Studio Art at a Californa State University.

Most of us who went through that educational experience joke about having "survived art school." I am not sure many attorneys reflect the same way on their own education or they might be doing more thinking outside the box when they look at Supreme Court candidates.

The Harriet Miers nomination, given todays circumstances and the always unreliable Republican Senatorial bench, will go down in history as a very good pick... much like FDR selecting Harry Truman as his running mate.

The Harriet Miers nomination has truly revealed the anatomy of the Republican Party and demonstrated the existence of cultural and intellectual elitists on our side of the aisle. I have news for the Krauthammers, Kristols, Coulters, Ingrahams, Wills, Frums, etc.: Redstate America is NOT NRO!!!!

The nomination of Harriet Miers, in my opinion, was based in a large part on character. Too many times, we have relied on the pedigree and the words from the Right's "intelligentsia" only to be disappointed (Kennedy, Stevens, O'Connor). I trust President Bush not only because he appoints people in line with his and my philosophies, but also because has character and he appoints people of character.

This is more of a political question than a legal analysis issue, and I think you are avoiding the political issues Beldar. Nevertheless, I am curious what you or your commenters think: Would Justice Stevens be more or less willing to retire in light of the Miers' nomination?

If GWB had nominated a Michael Luttig-type conservative, this would suggest to Justice Stevens that GWB is an ideologue who could not be counted on to submit a moderate for his (Justice Stevens') seat. And even if Justice Stevens believes that GWB would appoint a moderate, he may worry that a moderate would not be acceptable to Republicans at this point. On the other hand, nominating a stealth candidate like Harriet Miers may be reassuring to Justice Stevens that GWB is a moderate himself and/or is willing to appoint people who are not ideologues.

And as a corollary to my earlier question: To what extent are GWB's nominations directed at the Supreme Court Justices themselves?

The best example that there is an element of elitism to the anti-Miers argument is the notion that her resume is not elite. Although it may not contain a person's particular preference for a Supreme Court nominee (such as being a judge), it is unquestionably elite by any standard. To claim that it is not, in my opinion, is almost like saying it is not possible to have a top-notch legal resume while being educated and working in Texas.

Unless I missed it, you haven't dealt with Todd Zywicki's perceptive argument early this week in the Volokh Conspiracy, of which this is a snippet:

"[H]istorically those who come to the Court without a clear jurisprudential philosophy almost always end up moving left, which may add still further to the concern about her apparent lack of intellectual heft. Simply because she has stood up to the political criticism that she has received working in the White House does not mean that she will be able to withstand the intellectual criticism that she will receive. Writing a persuasive Supreme Court opinion that will hold a majority is a whole different ball game from stonewalling the Washington Post reporters."

You asked a fair and excellent question about what standards I would use to evaluate practioners. I attempted to answer that (in part) the other day at Volokh’s, and will try to recreate it here.

I think we need to look for lawyers with substantial experience in criminal and civil law, to start with. (The former being an area of inexperience among most contemporary justices.) I’d want someone who has experience either working inside or counseling businesses. I’d also want someone who had demonstrated some sort of political acumen and who had been involved in legal policy-making (at a relatively high level) over a lengthy period of time.

For instance, I think a nominee should have extensive experience at all levels of a criminal and civil practice, e.g., have served as both an AUSA and a US Attorney, but who had also served as an associate and senior partner at a firm known for doing the highest caliber of work. I think the nominee should have experience serving on commissions and committees not just involved with managing legal associations but also in the formation of substantive legal doctrine. Finally, I’d want someone whose legal reputation is both wide and deep, i.e., known nationally or internationally as a lawyer of merit and earning enough respect that he or she could be appointed as an independent counsel or special prosecutor by a president of a different political party.

Do such people exist? At least one does: Bob Fiske, of Davis Polk. Served as an AUSA and USA for the Southern District of New York (maybe the premier US Attorney’s office in the country). Served as an associate and senior partner of one of the world’s great law firms. Served on all sorts of commissions and councils, including most recently the committee responsible for supervising the Federal Rules of Criminal Procedure. Appointed the special prosecutor to investigate Whitewater.

I would suggest that Fiske should serve as a model for potential nominees from practice. Are there others? I’m certain there are. Probably not 100s, but I’m sure there are other Republicans and even a few Democrats who come close to meeting such standards. Is Miers one of them? Perhaps, but I don’t really think so.

Over the last thirty years it has been almost impossible for presidents of either party to nominate the true tops of the profession from either the judiciary or academia. No Posners, no Calabresies, no McConnell (apparently) or Tribe or Sunstein. Senators (and presidents) lack the courage to engage nominees with serious, contentious paper trails, even when there is no question about their absolute merit. It’s truly pitiful to think how barren the Court would have been had this rule been extended back in time: no Holmes, no Cardozo or Brandeis, no Frankfurter. Probably no Black and – if the rule was applied with today’s strictness – no Scalia. We would have been a lesser country for losing such giants.

Nominating persons directly from practice may be our last chance to aim so high. Because practioners will have written less (and on less controversial subjects), and will often be able to “hide behind their clients,” there is still a chance that a practioner of truly outstanding merit – someone recognized as being at the uppermost pinnacle of the legal profession – would be able to survive the confirmation process. People like Bob Fiske, or Lloyd Cutler (who Beldar mentioned earlier).

A.S. argues that, given you want a practicing lawyer, what distinguishes Miers.

A.S. discounts most of what might be given as an answer, which is like the never-ending argument where your opponent's response to each answer is "yea, but other than THAT, what do you have"?

But A.S. left off the most important distinction.

We do not want just ANY practicing lawyer. We want a practicing lawyer that meets our most important QUALIFICATION for a justice: That they be a strict constructionist, and that they won't change during their tenure.

We don't KNOW the answer to this question. We won't KNOW the first until after the hearings, and we won't know the second until she retires.

But President Bush, who has known her for 10 years, asserts that he KNOWS the answer, and it is YES to both.

THAT is what distinguishes her from all the other trial lawyers. There may even be BETTER trial lawyers out there, but he can't be sure of any of them following his view of constitutional law.

The questioning of Miers has to be complete and exacting. Where there is no record, we must make sure she is clear on her position on originalism, what she thinnks it means, and how she would apply it to cases.

But if she answers satisfactorily, and shows competence in handling questions, then she has my whole-hearted support: Because having proven part 1, I would trust Bush on part 2. After all, he's the one who's legacy is in jeopardy, and he doesn't want to be like his dad.

Zywicki's not saying she's not smart enough. He's saying she hasn't taken a serious intellectual look at the constitutional issues that will dominate in the Supreme Court. I have a pretty decent lawyer's resume, if I may be immodest, but if the president nominated me to head the SEC, that would be presidential malpractice. I have virtually no experience with securities law. The fact that a lawyer is smart doesn't qualify him or her for every legal position.

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